Op-Ed: What the Waiver Rule Does -- and Doesn't -- Do

Rarely recognized as such, the rule actually is a pragmatic approach to the protection of New Jersey's environment.

In one of his first official acts as the State’s Chief Executive, Gove. Chris Christie issued Executive Order #2, establishing a “Waiver Rule” that could be applied to certain specific environmental regulations enforced by the New Jersey Department of Environmental Protection (NJDEP). Scheduled to take effect on August 1, 2012, the Waiver Rule appears, for the time being, to have survived opposition by members of the state Legislature that could delay, or outright prevent, its implementation.

This legislative resolution, which passed the General Assembly on a party-line vote but to date has not garnered sufficient support in the state Senate, challenges the governor’s authority to implement the Waiver Rule via executive order on the basis that it is inconsistent with legislative intent. The real opposition, however, much of which is being generated by local and state environmental organizations that have filed suit to overturn the rule, is based on the belief that the Waiver Rule grants the commissioner of the NJDEP the autonomous authority to circumvent existing regulatory protections.

The reality is that the Christie Administration is looking to implement this rule in an effort to introduce pragmatism to the enforcement of environmental regulations while simultaneously ensuring that the spirit and purpose behind those regulations remain intact.

It is important to recognize that the Waiver Rule does not give the NJDEP the discretionary authority to skirt existing regulations. On the contrary, the NJDEP is permitted to waive regulations only in cases where: the rule conflicts with another NJDEP, state or federal rule in a way that makes compliance with both rules impossible or impracticable; strict compliance with the rule would result in exceptional hardship or excessive cost where there is a cheaper alternative that is as or more protective of the public or the environment; there will, despite the waiver, be a net protection of the natural resource or other environmental good that is protected by the rule being waived; or an authorized federal or state official declares a public emergency justifying the waiver.

As an environmental and land use attorney here in New Jersey, I understand and appreciate the importance of smart growth policies and the need for state government to be vigilant in the protection of our environment. I can also understand why some may exhibit some level of skepticism concerning the Waiver Rule. But as someone who represents clients who navigate these regulatory parameters in order to do business in our state, I recognize the need to have a limited, reasonable degree of flexibility when applying these rules to real world situations.

However, having reviewed the comments to the Waiver Rule as proposed and the department’s responses thereto, it is clear that the Waiver Rule is not intended to and should not be utilized in situations where a waiver would eviscerate the protections that our environmental laws are designed to provide to public health and safety. These situations include allowing over-development within communities susceptible to flooding, permitting burdensome construction projects that foist substantial financial burdens and creating new public safety concerns upon the host municipality or shoehorning residential development projects on existing commercially developed properties which have contamination or wetlands mitigation issues that property owners have failed to adequately address.

The Waiver Rule is a good faith attempt by Gov. Chris Christie and NJDEP Commissioner Bob Martin to apply commonsense principles to the enforcement of environmental regulations that can be, at times, overly burdensome, impractical and detrimental to the growth of businesses in New Jersey. One can only hope that this type of practical approach to the way our state enforces government regulations is given the consideration it deserves but that the Christie administration and NJDEP stay true to the commitment of utilizing the Waiver Rule in appropriate, but rare, circumstances.

Philip J. Morin III is a partner with Florio Perrucci Steinhardt & Fader and is a member of the firm’s Environmental Group.